Helping Hand Tools v. San Diego Air Pollution Cont. Dist. etc. CA4/1 (2014) · DecisionDepot
Helping Hand Tools v. San Diego Air Pollution Cont. Dist. etc. CA4/1
California Court of Appeal Apr 30, 2014 No. D063313Unpublished
Filed 4/30/14 Helping Hand Tools v. San Diego Air Pollution Cont. Dist. etc. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HELPING HAND TOOLS, D063313
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2012-00094152- CU-TT-CTL) SAN DIEGO AIR POLLUTION CONTROL DISTRICT HEARING BOARD,
Defendant and Respondent;
TODD T. CARDIFF,
Objector and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, William S.
Dato, Judge. Affirmed.
Law Office of Todd T. Cardiff and Todd T. Cardiff for Plaintiff and Appellant and
for Objector and Appellant.
Thomas E. Montgomery, County Counsel, and C. Ellen Pilsecker, Chief Deputy
County Counsel, for Defendant and Respondent San Diego Air Pollution Control District
Hearing Board.
Helping Hand Tools (HHT) and its trial counsel, Todd Cardiff (together,
Appellants), appeal a judgment ordering them to pay $6,000 in sanctions under the
California Environmental Quality Act (CEQA), which authorizes the imposition of
sanctions against a party and its counsel for asserting a frivolous CEQA claim. (Pub.
We ordinarily review an award of sanctions under the deferential abuse of
discretion standard. (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.)
"Assuming some evidence exists in support of the factual findings, the trial court's
exercise of discretion will not be disturbed unless it exceeds the bounds of reason."
(West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 698.) "But where a
question of statutory construction is presented in the course of the review of a
discretionary decision, such issues are legal matters subject to de novo review." (Optimal
Markets, Inc. v. Salant, at p. 921.)
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B. The Hearing Board Is Not the Proper Body to Consider CEQA on Administrative Appeal
Appellants contend the trial court abused its discretion in awarding sanctions
because it misinterpreted Public Resources Code section 21151, subdivision (c), which
provides that "[i]f a nonelected decisionmaking body of a local lead agency . . .
determines that a project is not subject to [CEQA], that . . . determination may be
appealed to the agency's elected decisionmaking body, if any." The guidelines
implementing CEQA define a "[d]ecision-making body" as "any person or group of
people within a public agency permitted by law to approve or disapprove the project at
issue." (Cal. Code Regs., tit. 14, § 15356.)
Appellants argue the Board of Supervisors—admittedly an elected governing body
of the District—nevertheless is not a decisionmaking body because it does not have the
authority to approve or disapprove a project. In doing so, Appellants rely heavily on No
Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 573 (No
Wetlands). The trial court found No Wetlands distinguishable. We do too.
In No Wetlands, the Marin County Environmental Health Services (Marin EHS)
issued a permit for expansion of a landfill after certifying as complete an environmental
impact report (EIR) prepared under CEQA. (No Wetlands, supra, 204 Cal.App.4th at
p. 577.) An association of local residents claimed a right to appeal Marin EHS's
certification of the EIR to the Marin County Board of Supervisors under Public
Resources Code section 21151, subdivision (c). (Id. at p. 579.) The county refused to
hear the appeal on the basis that Marin EHS was acting as the designated representative
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of the California Department of Resources Recycling and Recovery (CalRecycle) and not
on behalf of the county. (Id. at p. 579.) The residents sued and obtained a writ of
mandate ordering the defendants to vacate the EIR certification and to allow an
administrative appeal to the board of supervisors. (Id. at p. 580.) The defendants
appealed to the First District Court of Appeal, Division Four, which reversed.
Our colleagues explained that under the statutory scheme at issue before them—
the Integrated Waste Management Act (Waste Act) (Pub. Resources Code, §§ 40000 et
seq.)—the "Board of Supervisors has no power to approve or disapprove the project at
issue and thus is not an elected decisionmaking body empowered to hear plaintiffs'
appeal." (No Wetlands, supra, 204 Cal.App.4th at p. 584.) But there are material
differences between the Marin County Board of Supervisors' role under the Waste Act
and the San Diego County Board of Supervisors' role under the laws governing air
pollution control districts. Although a "county's board of supervisors may designate a
local enforcement agency under the Waste Act to inspect, issue permits, and enforce
regulations at solid waste landfills," (id. at p. 581; Pub. Resources Code §§ 43200, 43203,
subd. (a)), the "local enforcement agency is not, however, authorized to issue a[] . . .
permit under its own power." (No Wetlands, supra, 204 Cal.App.4th at p. 581; Pub.
Resources Code §§ 44007, 44009, subd. (a)(1).) Instead, the local enforcement agency
must submit the proposed permit to CalRecycle for the state agency's consideration, and
the local agency may issue a permit only with CalRecycle's concurrence. By contrast, the
District, through its Air Pollution Control Officer—an APCB (aka Board of Supervisors)
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appointee—independently issues ATCs and permits to operate without review or
approval by a supervising state agency. (Health & Saf. Code, §§ 40750, 40752.)
The appellate process for permit decisions under the Waste Act also differs
dramatically. Although the Waste Act and air pollution control district laws both
authorize local governing bodies to appoint members of a hearing board to hear appeals
of permit decisions, local hearing board decisions under the Waste Act are subject to
further appeal to CalRecycle. (Pub. Resources Code, § 45040, subd. (a).) There is no
similar appellate oversight for air pollution control district hearing boards.
Given the material distinctions between the powers vested in local agencies under
the Waste Act and air pollution control district laws, we are not surprised the No
Wetlands court concluded a county board of supervisors is not a decisionmaking body
under the Waste Act. International Longshoremen's and Warehousemen's Union, Local
35 v. Board of Supervisors (1981) 116 Cal.App.3d 265 (International Longshoremen's)
provides a good example of why that conclusion does not extend to air pollution control
districts.
In International Longshoremen's, the San Bernardino County Board of
Supervisors, acting as the governing board of the county's air pollution control district,
authorized the reconstruction and expansion of an alkaline mining plant for which an EIR
had been prepared and certified. (International Longshoremen's, supra, 116 Cal.App.3d
at p. 268.) The board required the plant to comply with a district rule regarding certain
emissions, but further provided that if the plant could not meet those requirements using
best available techniques, the district would amend its rule to allow whatever emissions
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level the plant could achieve using the best available technology. (Id. at pp. 268-269.)
The board of supervisors (acting in that capacity) later certified a supplemental EIR that
addressed certain modifications to the plant expansion. (Id. at p. 269.) Later, the board,
as the governing body of the air pollution control district, held a hearing at which they
approved a rule change that was drafted in such a way as to allow increased emissions
only from the alkaline plant. (Ibid.) In adopting the rule change, the board determined
the action was categorically exempt from CEQA. (Ibid.) The union representing a
majority of the plant workers and an environmental protection group sued to challenge
the categorical exemption. (Id. at p. 270.) The trial court found the lawsuit untimely
under CEQA, but the Court of Appeal, Fourth District, Division Two reversed.
After finding the lawsuit timely, the court examined the merits of the CEQA
claim. (International Longshoremen's, supra, 116 Cal.App.3d at pp. 270-276.) The
court concluded the board of supervisors, acting as the governing board of the district,
failed to properly consider the required factors under CEQA. (Id. at pp. 275-276.)
Accordingly, the court reversed with directions to issue a writ of mandate commanding
the board to set aside its rule change and to conduct further proceedings in conformity
with the requirements of CEQA. (Id. at p. 277.)
Appellants attempt to distinguish International Longshoremen's on the basis that
the board of supervisors engaged in rulemaking as opposed to administrative project
approval. We are not persuaded. Rather, the case persuasively demonstrates how
sweeping an elected air pollution control board's authority is, effectively allowing spot-
legislative approvals of projects. Moreover, although the International Longshoremen's
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court reversed the specific rule amendment, it did not do so on the basis that the board
was without the power to change it, but rather, on the basis that the board needed to apply
CEQA more thoroughly.
Based on our reading of CEQA, No Wetlands, and International Longshoremen's,
we conclude the Board of Supervisors, sitting as the APCB, is the District's elected
decisionmaking body within the meaning of Public Resources Code section 21151,
subdivision (c). Accordingly, the trial court did not abuse its discretion in concluding
HHT was required to appeal the NOEs to the Board of Supervisors instead of the Hearing
Board.
Appellants also contend they were excused from appealing to the Board of
Supervisors because the District lacked a specific rule or procedure specifying how such
an appeal is to be taken. On this record, we are not convinced. First, Appellants assert—
without any supporting authority—that "Public Resources Code section 21151 does not
provide an independent basis for appealing a CEQA determination to the Board of
Supervisors." As we just explained, however, we conclude it does. Moreover, as a result
of Appellants' admitted failure to attempt an appeal to the Board of Supervisors, the
record is silent as to whether the Board of Supervisors' rules and procedures specifically
address appeals of CEQA determinations made by the District. This point was not lost on
the trial court:
"Mr. Cardiff: There's nothing in the record that shows that the Board of Supervisors has ever considered a [sic] appeal of a CEQA decision for an ATC."
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"The Court: Mr. Cardiff, that's why I asked you the question whether you tried to do that. Because if you did, if you had made inquiry to the Board of Supervisors, to the clerk, to somebody, and you were told [']no, you can't do this,['] then I think that becomes more of a concern. But you didn't do that."
The record's silence in this regard is fatal to Appellants' challenge. (E.g., Estrada v.
Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 ["It is the burden of appellant to provide
an accurate record on appeal to demonstrate error. Failure to do so precludes an adequate
review and results in affirmance of the trial court's determination."].)
Moreover, the inverse of Appellants' assertion was true—there was something in
the record that showed the Hearing Board had never considered a CEQA appeal: one
member of the Hearing Board stated at the hearing that in his 20 years on the board he
could not remember ever hearing a CEQA matter.
C. Appellants' Purported Reliance on No Wetlands Does Not Render the Sanctions Award Improper
Appellants assert throughout their briefing that their reliance on No Wetlands
rendered their CEQA claim against the Hearing Board arguable and, thus, immune from
sanctions. (See, e.g., Guillemin, supra, 104 Cal.App.4th at p. 168 [a contention is not
frivolous if it is "arguable," even though it "lacks persuasive force"].) We are not
persuaded. To begin with, Appellants could not possibly have relied on No Wetlands at
the time they filed their petition with the Hearing Board—No Wetlands had not been
decided by then. Nor could appellants have relied on No Wetlands when they filed the
initial complaint in superior court—No Wetlands still had not been decided (a point
Appellants curiously concede in their opening brief).
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All the while, Appellants conducted themselves as if they were entitled to appeal
the NOEs to the District's elected decisionmaking body. They did so in their initial
demand letter, which expressly identified the Board of Supervisors as the elected
decisionmaking body for the District. In response, the District's counsel immediately
notified Appellants the elected decisionmaking body for the District is the Board of
Supervisors sitting as the APCB. The District reiterated the Hearing Board's lack of
jurisdiction in its response to HHT's Hearing Board petition. HHT's executive director
testified before the Hearing Board that HHT's response to being notified that the Hearing
Board lacked jurisdiction over CEQA appeals was to file a lawsuit, not an appeal to the
Board of Supervisors. HHT's original complaint similarly invoked its right to appeal
"CEQA determinations such as exemptions . . . to an elected body for a final decision
pursuant to Public Resources Code section 21151(c) . . . ." The trial court identified
Appellants' persistent pursuit of their appeal to the wrong board as part of the basis for
sanctions. Under the circumstances, we cannot conclude the trial court abused its
discretion in doing so.
Additionally, although we decline to invoke formally the doctrine of judicial
estoppel (as respondents have requested), Appellants' inconsistent positions further
establish the trial court did not abuse its discretion in concluding Appellants did not act
reasonably under the circumstances.
Finally, because we have concluded the trial court did not abuse its discretion in
awarding sanctions on the basis that it did, we have not considered the alternative bases
proffered on appeal by the Hearing Board.
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DISPOSITION
The judgment is affirmed. The Hearing Board is entitled to costs on appeal.
McINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
17
AI Brief
AI-generated · verify before citing
Holding. The court held that the San Diego County Board of Supervisors, sitting as the Air Pollution Control Board, is the proper elected decisionmaking body for CEQA appeals, and that the trial court did not abuse its discretion in awarding sanctions against appellants for pursuing a frivolous claim before the wrong body.
Issues
Whether the San Diego County Air Pollution Control District Hearing Board is the proper body to consider CEQA determinations on administrative appeal.
Whether the trial court properly awarded sanctions against appellants for asserting a frivolous CEQA claim.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the Board of Supervisors, sitting as the APCB, is the District's elected decisionmaking body within the meaning of Public Resources Code section 21151, subdivision (c).”
“the trial court did not abuse its discretion in concluding HHT was required to appeal the NOEs to the Board of Supervisors instead of the Hearing Board.”
“a contention is not frivolous if it is "arguable," even though it "lacks persuasive force."”